19 October 2020

No two claims, whether personal injury or medical negligence, are ever the same.

Putting a price on a claim is therefore a very individual concept. There are factual, legal and actual (practical) considerations.

Factually, there are two main considerations:

1. What the individual wants. Sometimes the injured party wants a simple apology; monetary compensation is not important.

2. The value of the claim as assessed by lawyers.

Legally, it is important that value reflects the impact of the incident or accident, the actual financial losses plus any future difficulties and challenges which are anticipated.

Actually, of course, what the individual decides they will accept may be different to this (higher or lower), particularly when settling out of Court. Such decisions need careful consideration and management. The actual amount can be a very subjective thing. What may be a lot to one individual, may be insignificant to another. For some, settling early at a greater compromise, is more attractive than a protracted battle.

Calculating value

Every claim is made up of two main elements (or ‘heads’) of damage. These are;

a. A value for pain and suffering, and loss of amenity.

b. A value for financial loss (out of pocket expenses – past and future).

Put together, these elements form the full value of the claim.

a: Pain and Suffering, and Loss of Amenity

The element which is often the hardest to gauge is the value for pain and suffering and loss of amenity (PSLA).

Pain and suffering is simple to define – how much pain and injury has the injured person endured? (Of course pain itself is a subjective matter – because pain thresholds will vary).

Loss of amenity means an adversely affected quality of life, for example an individual who is unable to take part in previously enjoyed hobbies or interests or an individual unable to carry on in the same line of work.

This is again subjective and each claimant will have their own idea on what is appropriate in their circumstances and assess how they have been affected. If interests are wide and varied, there will be a greater impact and effect on value. If the injured party has no outside interests, the effect will be less. In the same way, a younger, very active person will have a different impact to a more elderly person whose activities were already limited.

To assess the value, therefore, a number of considerations are taken into account including:

1. Published guidelines on appropriate values.

2. Previous case awards

3. Reported and documented pain and suffering

4. Loss of amenity effect

5. Individual characteristics such as age, gender.

Published guidelines are useful as they can give some structure to an otherwise unstructured science and they can give a good starting point. For example, values for minor injuries are given depending on the recovery timescale, eg 7 days, 28 days and 3 months. Such structure is useful but still only gives a broad range of value, eg £2,000 - £3,000 rather than an exact figure.

Depending on the particular issue, that range of value can be much more eg £20,000 - £50,000 requiring further analysis to consider the appropriate value.

To help with this, we look at the remainder of guidance in the list 1-5 above including:

  • Past claim awards, these allow the lawyer to compare the precise facts of their case against the award of a similar case in Court.
  • The individual pain and suffering and loss of amenity. As stated above this is based on evidence of the degree of pain and suffering and the degree of impact on day to day activities. For example, how long was the injured person in hospital for/what activities is he/she prevented from doing?
  • Relevant factors including age and gender. The younger the claimant, generally the higher the award because they longer the person will be affected.

b: A value for financial loss (out of pocket expenses – past and future).

This element is usually easier to calculate and is divided into past and future losses. Common financial losses are:

1. Loss of earnings.

2. Incurred expenses such as the need to employ a gardener or cleaner.

3. The value of care provided by a relative.

4. Prescription costs, aids and equipment like ramps for a wheelchair or walking sticks.

5. The cost of cancelling pre-booked holidays.

6. The cost of rehabilitation such as physiotherapy or counselling.

If the injury has a long-term impact, the financial cost will need to be projected into the future. The financial impact can therefore be high and very often easily outweigh the element for pain & suffering.

The value of anything; land, possessions, designer clothing, all has a subjective element, it is what it is worth, to that purchaser. What an individual will accept as a settlement also has a subjective element but is combined with objective legal advice. Ultimately, the subjective mind will make the decision – to accept or not accept an offered figure.

At Battens we combine objective advice on value with the thoughts, opinions and wishes of our clients; working together and listening to find the right outcome in a claim for our clients.

So, whether it be an accident at work, RTA, medical negligence or industrial disease matter, we will apply these fundamental principles to find the right outcome for you.

We’re here to help. Contact us on: 0800 652 8373

View our personal injury and industrial disease services here and our medical negligence services here.